2125 Drawings as Prior Art [R-08.2012]

I. DRAWINGS CAN BE USED AS PRIOR ART

Drawings and pictures can anticipate claims if they clearly show the
structure which is claimed. In re Mraz, 455 F.2d 1069, 173 USPQ 25
(CCPA 1972). However, the picture must show all the claimed structural features and how
they are put together. Jockmus v. Leviton, 28 F.2d 812 (2d Cir.
1928). The origin of the drawing is immaterial. For instance, drawings in a design
patent can anticipate or make obvious the claimed invention as can drawings in utility
patents. When the reference is a utility patent, it does not matter that the feature
shown is unintended or unexplained in the specification. The drawings must be evaluated
for what they reasonably disclose and suggest to one of ordinary skill in the art.
In re Aslanian, 590 F.2d 911, 200 USPQ 500 (CCPA 1979). See
MPEP §
2121.04 for more information on prior art drawings as “enabled
disclosures.”

II. PROPORTIONS OF FEATURES IN A DRAWING ARE NOT EVIDENCE OF ACTUAL PROPORTIONS WHEN
DRAWINGS ARE NOT TO SCALE

When the reference does not disclose that the drawings are to scale and
is silent as to dimensions, arguments based on measurement of the drawing features are
of little value. See Hockerson-Halberstadt, Inc. v. Avia Group Int’l,
222 F.3d 951, 956, 55 USPQ2d 1487, 1491 (Fed. Cir. 2000) (The disclosure gave no
indication that the drawings were drawn to scale. “[I]t is well established that patent
drawings do not define the precise proportions of the elements and may not be relied on
to show particular sizes if the specification is completely silent on the issue.”).
However, the description of the article pictured can be relied on, in combination with
the drawings, for what they would reasonably teach one of ordinary skill in the art.
In re Wright, 569 F.2d 1124, 193 USPQ 332 (CCPA 1977) (“We
disagree with the Solicitor’s conclusion, reached by a comparison of the relative
dimensions of appellant’s and Bauer’s drawing figures, that
Bauer ‘clearly points to the use of a chime length of roughly 1/2
to 1 inch for a whiskey barrel.’ This ignores the fact that Bauer
does not disclose that his drawings are to scale. ... However, we agree with the
Solicitor that Bauer’s teaching that whiskey losses are influenced by
the distance the liquor needs to ‘traverse the pores of the wood’ (albeit in reference
to the thickness of the barrelhead)” would have suggested the desirability of an
increased chime length to one of ordinary skill in the art bent on further reducing
whiskey losses.” 569 F.2d at 1127, 193 USPQ at 335-36.)